Willie O'Dea (Limerick City, Fianna Fail) | Oireachtas source

I move amendment No. 10:

In page 7, between lines 28 and 29, to insert the following:

“ “6B.(1)The Minister may, draw up, amend or revoke, in relation to determining the employment or self-employment status of an individual, one or more than one, codes of practice for determining said status.

(2) The Minister shall, within six months of the commencement of the Employment (Miscellaneous Provisions) Act 2017, publish a code of practice for determining the employment or self-employment of an individual.

(3) The code referred to in subsection (2) may be based on the “Code of Practice for Determining Employment or Self-Employment Status of Individuals 2007”, and shall be drawn up in conjunction with the following bodies—

(a) Department of Business, Enterprise and Innovation;

(b) National Employment Rights Authority;

(c) Department of Employment Affairs and Social Protection;

(d) Department of Finance;

(e) Irish Congress of Trade Unions;

(f) Irish Business and Employers Confederation;

(g) Small Firms Association;

(h) Construction Industry Federation; and

(i) Revenue Commissioners.

(4) It shall be an offence for an employer to fail to comply with a code of practice published under this section.

(5) A person guilty of an offence under this section shall be liable on summary conviction to a class A fine.”.”.

Amendment No. 10 is to deal with bogus self-employment. I put down the amendment simply to draw the Minister's attention to this phenomenon one more time and to try to ascertain what the Government is proposing to do about it.

As the Minister knows, this phenomenon of bogus self employment is a reality now in the workplace and it is something that has been growing. If one looks at the figures on people who are classified as self-employed without employees, it used to be confined to certain sectors, largely confined to construction, but it is spreading into other sectors. It amazes me that there are volumes of tax case law to ascertain for tax purposes what a self-employed person is and what an employee is. It would appear that in this country, any employer can choose to set aside all that legislation and learned opinion on a whim and simply deem somebody who is clearly an employee to be self-employed.

This has a number of consequences. First, the statutory protections which employees now enjoy and which have been hard won and built up over a number of years, are set at nought at the stroke of a pen. Second, and I know this will be of interest to the Minister, there is a huge loss of revenue to the State which could be spent in many useful ways. I got a document from the Revenue Commissioners that was published by them but drawn up by another body. It is a code of practice in determining employment status and, to be honest, if it was not so serious, it would be laughable. In the introduction, it says that an important consideration in this context will be whether the person performing the work does so as a person in business on his or her own account - in other words, is the person is a free agent with an economic independence of the person engaging the service? It sets out loads of criteria that one would look at. It says that generally speaking, a person should be considered an employee if he or she is under the control of another person, only supply his or her labour, receives a fixed wage, cannot sub-contract out the work, does not supply materials for the job, etc. If one goes through all those criteria from beginning to end, I know a lot of people in my constituency who meet all those criteria are taxed and treated for employment law purposes as being self-employed. People are working on construction sites in Limerick doing labouring work who are, as far as I can see, classified as self-employed. We have people working in the retail business who are clearly just working for an employer. They are classified as self-employed because it suits the employer to do it.

This phenomenon has been growing, as I have said to the Minister, and I know that she has been looking at it and has done certain work on it. In putting down the amendment, I am suggesting that we redo the code and we make it an offence for an employer to breach the code. Maybe the Minister has something different in mind. I do not know but I want to know where we are as a country in tackling this scandal.